Last week, the U.S. Forest Service got the drop on Tombstone when the City’s request for an emergency injunction was denied by Senior Judge Frank Zapata of the United States District Court. But Tombstone’s legal posse has a more than a few rounds left in the chamber.
The Goldwater Institute has already appealed the decision as a violation of the Tenth Amendment and, on May 21st, we filed an emergency motion for an injunction with the Ninth Circuit Court of Appeals on behalf of the City of Tombstone. The motion urges the Court to allow Tombstone to repair its Huachuca Mountain water system because the loss of water to the City is especially dangerous now that wildfire season has arrived. It is entirely possible that the motion will be granted in just a few days. But even if it is denied, the City won’t be firing blanks just yet. The next move is an emergency request before Justice Anthony Kennedy, who “rides” the Ninth Circuit.
Meanwhile the cavalry is on the horizon. County and rancher organizations from around the Western States are gearing up to file “Friend of the Court” briefs in support of Tombstone’s appeal. And three days after the denial of Tombstone’s request for emergency relief from Judge Zapata, U.S. Representative Jeff Flake introduced a bill entitled the “Emergency Water Supply Restoration Act.” The bill would allow state and local governments to freely and fully restore water supplies in Wilderness Areas without interference from federal agencies during a declared State of Emergency. No doubt the bill will catch the U.S. Forest Service’s attention.
Congressman Flake’s bill may have an uphill battle in the Senate, but combined with the cutting edge legal theories being used by the Goldwater Institute’s posse of public interest attorneys, no one should count out the “Town Too Tough to Die.”
Goldwater Institute: Emergency Motion Pending Appeal (PDF)
Goldwater Institute: Tombstone v. United States
U.S. Congress: Emergency Water Supply Restoration Act (PDF)